• Second owner of property gift deed

We are facing a issue with transfer of one of a flat in our society. 
The said flat is registered in the name of wife and husband, wifes name being first in share certificate.
Wife has passed away a year before and her son has claimed rights over flat based on a will of the first owner (mother). He has made a application to the society for membership in place of First owner based on the will which is not registered or probated.

Mean while the second owner ( husband) has married again and has carried out a registered gift deed of his shares to his second wife. The husband has also applied to the society for transferring his name in the share certificate to his second wife on the basis of the gift deed.

We would like to know if the associate member can transfer his share by gift deed. Can the society substitute the name of second owner based on his gift deed. Can a associate member transfer his share without the concent of the first owner
even the transfer of First name is on question can what procedure to be followed for the transfer of First name. 
Please advise what should be the sequence of transfer should the society first work on transfer of First name and then second or the second name can be transferred and first left pending

Can a joint owner whose name appears second in the share certificate gift deed his shares to
Asked 4 years ago in Property Law
Religion: Hindu

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17 Answers

1) ask the son to apply for probate of will of deceased mother

2) then transfer mother share in flat to name of son on execution of indemnity bond

3) society can transfer share of husband in flat on basis of gift deed

4) as he is conowner of flat he can execute gift deed fir his share in flat

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

1. Yes associate member can transfer his share, but only after filing a partition suit.

Will needs to be registered, letter of administration is to be obtained from the High Court

Approach the HC and then ask the society to insert your name in place of the mother name

Contact a local lawyer at the earliest

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Will without taking of Probate has no value in the eye of law.

2. So without a copy of Probate the society may ignore ro acknowledge half share if her son.

3. However even if there is no will her son has 1/4 th share in the flat while the husband has remaining 3/4th share.

4. In that context there is ni legal hindrance in transferring the share of the husband to his second wife which makes the son and hus step mother co sharer of the flat.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. The first owner is no more and her will has not yet been probated.

2. Without the grant of probate, will has no value more than a scrap paper.

3. So, the share of the 1st wife of the husband will also be legally inherited by the said husband in absence of probate of the will.

4. In the instant case, the gift deed has been registered in favour of the 2nd legally wedded wife of the husband and not to any outsider for which no consent or approval is required from the son of the said husband.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

1) from 1st onwer son can get legal heirship certificate from court than his name can appear on share certificate.

2) And gift deed given by husband to his second wife is also correct and can register her name as well, just check the gift had been registered.

3) Both names can appear on share certificate.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

If the property was purchased by a registered sale deed jointly in the names of both wife and the husband then they both are the owners of the property.

The question of first owner and second owner is a term what your society names otherwise as per law both are joint owners having equal share in the property.

The society, for its convenience, might have named the deceased wife as primary share holder and the husband as the secondary shareholder in the share certificate.

This will not disentitle the husband to claim his legitimate share in the property nor he can be denied the share certificate in the society.

The son of the deceased is the legal heir and is legally entitled to his legitimate share out of his deceased mother's share in the property even there is no will.

But since he is claiming her entire share he can be advised to get the will probated otherwise it cannot be a valid claim if the will is an unregistered document.

In the meantime the husband can be advised to explain that how he is entitled to transfer the entire shares to a third person by gift or whatever when he is entitled to only half share in the property and moreover he is a secondary shareholder, thus without transferring his share in the property by a registered gift deed, he cannot just like that transfer the share certificate alone to the named person.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

Hi, legally you can transfer 50 percent of his share to his wife but you can take a plea to wait for the transfer untill the matter is sub judice before court ..

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

1. The associate member is free to gift his share. He does not require the consent of the first owner to gift his share.

2. The society is bound to substitute the name of second owner if the gift deed has been properly stamped and registered.

3. The share certificate has to be transferred to the son and father first and thereafter to the second wife of father.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

As per S.15 of the Succession Act, The property of a female Hindu dying intestate shall devolve firstly, upon the sons and daughters. Even in the absence of a valid Will, the surviving son has a legitimate right to his share.

As per S.47 of the transfer of property act, Where several co-owners of immovable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.

Therefore, the husband bequeathing his share through a gift deed is absolutely legal and the society is bound to transfer the name in the name of the second wife.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

society can transfer share of husband to his second wife

2) son consent is not necessary for transfer of father share

3)application for first name transfer was made prior in time

4) you should clear his application and then transfer husband share in favour of second wife

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

The law is well settled that a Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants. The father of t joint Hindu family governed by Mitakshara law has full and uncontrolled powers of disposition over his self-acquired immovable property and his male issue could not interfere with these rights in any way.

Having said that, the gift made by the father to his second wife shall be absolutely legal unless and otherwise if it has a flavour of ancestral property proceeds. Therfore, the share of the husband can be transferred to his second wife.

First name can be blank unless he proves to be the legitimate owner of his mothers share.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

1. His claim for his mother's 50% share of the flat has not yet been established by him by taking probate of the will.

2. he has not yet claimed at least 50% of his mother's 50% share of the flat being one of her legal heir along with his father.

3. Now, as per law he has no claim on his father's 50% share of the Flat during the lifetime of his father.

4. The father is within his rights to gift his share of the flat to anybody he wishes to including his 2nd wife.

5. It is clear to you that till the will is probated, the 50% share of the 1st wife will be inherited by her son and husband who has remarried.

6. There is no provisions of Act which restrains the 2nd owner to convey title of his 50% share of the flat till the issue of inheritance of the 50% share of his 1st wife is decided.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

Yes you can make a gift deed and transfer the share.

The second name can only be included after the issue of the first name is cleared. I would not advise you to do any sale proceed before the same.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) both name can be registered in the share certificate. As both are right, and the son is objecting for his consent for gift deed of father to his step mother's name. Father has full rights to gift has property share to any one and nobodies consent require.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

The father is the absolute owner of his share in the property if the registered title deed mentions both the father and mother as buyers purchasing the property jointly.

If the above is yes, then the father can legally transfer his share in the porperty in favor of his second wife or to anyone of his choice by executing a registered gift deed.

His son cannot object to this nor can he claim a right over his father's share in the property for any reason, it is not maintainable in law and his case, if any in this regard, is tenable in law.

There is no question of first owner or second owner, both are joint owners.

Thus, as far as the share of the wife in this property, if the son claims ownership on the basis of the Will, then he has to prove that the will is valid by obtaining probate or letter of administration from a court of law, otherwise it can be said that his mother died intestate thereby the father is also having a share in his deceased wife's share of property. It means the son cannot claim his mother's entire share of property.

If you are for the society, you may better take a legal opinion from a local lawyer on such further issues before taking any wrong decision and run behind courts over the disputes or litigation.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

1. The society, as I said before, is bound to transfer the share certificate to the second wife on the basis of the gift deed.

2. Unless the gift deed is declared as illegal by the civil court it will hold its ground.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

Both the members are owners as they are 50 percent share holders. Once the first owner died there should be nomination of nominee who will be the member. If there is no nominee then the legal heir. The second owner has right to transfer his share to other as per a registered gift deed. The question of consent doesn't come here as first owner died. Yes in this case it is important to clarify the stand of first owner.

Prashant Nayak
Advocate, Mumbai
27289 Answers
88 Consultations

4.4 on 5.0

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